On 01/26/2018 RIGOBERTO QUINTANA filed a Personal Injury - Motor Vehicle lawsuit against AUGUSTIN HERNANDEZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
DOES 1 TO 20
AMMIRATO VINCENT A. ESQ.
1/26/2018: Civil Case Cover Sheet
Complaint; Filed by Rigoberto Quintana (Plaintiff)Read MoreRead Less
ComplaintRead MoreRead Less
Civil Case Cover SheetRead MoreRead Less
Summons; Filed by nullRead MoreRead Less
Case Number: BC691775 Hearing Date: January 08, 2021 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
RIGOBERTO QUINTANA, ET AL.,
AUGUSTIN HERNANDEZ, ET AL.,
CASE NO: BC691775
[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO VACATE DISMISSAL
January 8, 2021
Plaintiff, Rigoberto Quintana (“Plaintiff”) filed this action against Defendant, Augustin Hernandez (“Defendant”) for damages arising out of an automobile accident. Plaintiff filed the complaint on 1/26/18. On 11/6/19, Plaintiff filed an Order for Publication that was rejected on that same date. To date, Plaintiff has not filed proof of service of summons and complaint on Defendant.
On 2/26/20, the held an Order to Show Cause (“OSC”) Re: Dismissal for Failure to Serve and Failure to File Proof of Service and OSC Re: Dismissal for Failure to Enter Default. There were no appearances for either party at the OSC, and after noting that Plaintiff had failed to serve Defendant, failed to file proof of service and failed to enter default, the court ordered the action dismissed for lack of prosecution.
Plaintiff now moves to set aside the dismissal pursuant to CCP § 473, contending the dismissal was the result of Plaintiff’s counsel mistake, inadvertence, and excusable neglect. Plaintiff provides he has been unable to locate Defendant for service. Further, Plaintiff asserts Plaintiff’s counsel (“Counsel”) mistakenly or inadvertently failed to calendar the hearing for 2/26/20, and thus, failed to appear.
Motion to Set Aside
To the extent the motion is made pursuant to the mandatory provision of §473(b), the Court notes that Plaintiff cannot obtain relief under the mandatory provisions of Cal. Code Civ. Proc. §473(b) where an action is dismissed for failure to prosecute. “Finding that when the Legislature incorporated dismissals into section 473, subdivision (b) it intended to reach only those dismissals which occur through failure to oppose a dismissal motion ‘the only dismissals which are procedurally equivalent to a default, courts have held the mandatory relief provision inapplicable to dismissals for failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted] and voluntary dismissals entered pursuant to settlement [citations omitted].” (Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620.)
“An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes. After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473.” (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658.)
The court does, however, have discretion to vacate the dismissal under the discretionary provisions of CCP § 473(b). To grant relief under the discretionary relief provision of § 473, the moving party must show the dismissal was entered because of mistake, surprise, inadvertence, or excusable neglect. Plaintiff’s attorney contends the dismissal was entered because of his mistake, inadvertence or excusable neglect.
A mistake is a basis for relief under CCP § 473 when by reason of the mistake a party failed to make a timely response. Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default or dismissal. (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.) Under CCP § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment. (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.)
Here, Plaintiff’s counsel provides that he remembers being provided with the date for the 2/26/20 OSC, but that after the hearing was held and Counsel failed to appear, Counsel reviewed his law firm’s calendaring system and noticed that the hearing was not on the calendar. (Mot. Ammirato Decl. ¿¿ 10-12.) Counsel states notice for the OSC was waived, and it was Counsel’s responsibility to properly calendar the date, but Counsel failed to do so.
The court finds Counsel’s declaration establishes excusable neglect both in connection with failing to appear at the trial and also in connection with failing to file the motion more quickly.
The motion is therefore granted. CCP § 473(b). The action is reinstated. The Court sets a Trial Setting Conference for _______________________________.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.
Dated this 8th day of January, 2021
Hon. Thomas D. Long
Judge of the Superior Court
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